TMI Blog1990 (4) TMI 56X X X X Extracts X X X X X X X X Extracts X X X X ..... s dismissed. - 271 of 1990 - - - Dated:- 17-4-1990 - S. Ratnavel Pandian K. Jayachandra Reddy, JJ. [Judgment per : K. Jayachandra Reddy, Member (J)]. - Leave granted. This is an appeal seeking a writ of habeas corpus. The appellant who has been detained under Section 3(1)(i) and 3(1)(iii) of the COFEPOSA Act, 1974, has challenged the detention order. The appellant is a native of Panakkad, Malappuram District in Kerala and had been to Jeddah after his Haj pilgrimage and from Jeddah he landed in Bombay on 15-9-1987. Then he started by a bus to go to his native place. On 17-9-1987 the Customs Officials intercepted the bus near Thiruvannoor and in the presence of panch witnesses, a search was conducted on the person of the appellant and the chappals worn by him were inspected and on their being opened up about 13 gold ingots with foreign markings were found and they were duly recovered. Further some incriminating documents were also recovered. The gold was valued at Rs 4,64,951/- and it was found to be smuggled gold. The appellant was interrogated by the Superintendent of Customs and a statement of the appellant was recorded. He confessed that he was introduced to a perso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the counter-affidavit it is admitted that there is a delay of one month and five days in considering and rejecting the representation by the Central Government. 4. It can be seen that so far as the State Government namely the detaining authority is concerned, there is no delay but the submission is that the delay in disposing of the representation by the Central Government also is fatal. Article 22(5) of the Constitution of India lays down that when any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order. 5. It is well-settled that this Clause confers a valuable right upon the detenu to make a representation and also mandates that the detaining authority should dispose of the same without delay. Therefore the right under this Clause is two-fold, namely that the authority making the order must communicate to the detenu the grounds on which the order has been made, as soon as the order is made and secondly that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r accepting it. If there is inordinate delay in considering the representation that would clearly amount to violation of Article 22(5) so as to render the detention unconstitutional and void." In Shyam Ambalal Siroya v. Union of India and Ors. it is held that: "The power of the Central Government to revoke the order of detention implies that the detenu can make a representation for exercise of that power. Any petition for revocation of an order of detention should be dealt with reasonable expedition....It may be permissible for the Central Government to take reasonable time for disposing any revocation petition. But it would not be justified in ignoring the representation for revocation of the detention as a statutory duty is cast upon the Central Government. It is necessary that the Government should apply its mind and either revoke the order of detention or dismiss the petition, declining to order for revocation." In SabirAhmed v. Union of India and Ors. dealing with the power of the revocation of the Central Government it is observed that such power is intended to be an additional check or safeguard against the improper exercise of its power of detention by the detaining a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Minister of State for Revenue on 31-10-1988, since 29th and 30th October, 1988 were holidays. The Minister of State for Revenue with his comments forwarded the representation on the same day i.e. 31-10-1988 to the Finance Minister. The Finance Minister considered and rejected the representation on 1-11-1988 and the file was received in the office and on 2-11-1988 and on the same day, a memorandum rejecting the representation was sent to the detenu. From the explanation it can be seen that the representation was considered most expeditiously and there is no "negligence or callous inaction or avoidable red-tapism". For these reasons we are unable to accept this contention of the learned Counsel. 12. The next submission of the learned Counsel is that the date of search was 17-9-1987 and the detention order was passed on 21-5-1988 after a long time and therefore there is no nexus between the alleged incident and the detention order and therefore there is no genuine satisfaction on the part of the detaining authority. The learned Counsel submits that there was no live existing connection between the incident and the detention. In Lakshman Khatik v. The State of West Bengal [(1974) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ree with the learned Counsel that because of this delay the necessary nexus got severed and that the grounds have become stale and illusory. In appreciating such a contention, the court also has to bear in mind the nature of the prejudicial activities indulged by the detenu and the liklihood of his repeating the same. It is this potentiality in him that has to be taken into consideration and if the detaining authority is satisfied on the available material then on mere delay as long as it is not highly unreasonable and undue the Court should not normally strike down the detention on that ground. In Hemlata Kantilal Shah v. State of Maharashtra [(1981) 4 SCC 647] it is held that delay ipso facto in passing an order of detention after an incident is not fatal to the detention of a person. For these reasons we are of the view that in this case the delay by itself does not invalidate the detention but even otherwise it has been reasonably explained. 14. Yet another ground urged by the learned Counsel is that there was delay in arresting the detenu after the detention order was passed and therefore there is no genuineness in the detention order. In the counter-affidavit it is stated t ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
